Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of
course we
are hungry
for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We
encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded,
you can consider yourself subject to a Creative Commons Attribution License.

"Slaying the Dragon: Reloaded," a compelling new documentary that critiques the portrayal of Asian women in U.S. visual media, has drawn protests from an unlikely quarter. It wasn't from Hollywood, which was deservedly scoured for its depiction of Asian women in films from "Rush Hour 2" to "Sex and the City." It wasn't from conservative commentators claiming political correctness run amok.

Instead, the objection to the documentary by Elaine Kim, a UC Berkeley professor of Asian American studies, emerged from six Asian American filmmakers just before its premiere last week at the San Francisco International Asian American Film Festival. Their complaint: that she used clips of their work without seeking their permission.

Yet there are some who still insist that the current copyright regime doesn't pose a censorship problem (or minimize the importance of censorship if it doesn't involve grievances directed at the government). Presumably, these critics would consider documentarian Elaine Kim a free speech "opportunist" in her criticism of the current copyright regime.

The "copyright" industry consisting of a technologically obsolete Hollywood studios; music recording companies; and publishers of books is minuscule . To protect this pipsqueak industry, the Obama administration proposes both through the Department of Justice and the ACTA to impose draconian steps that will threaten many other not so pipsqueak industries, including the IT industry. Michele and I have pointed out the problem before. Finally the rest of industry has realized the threat - here is a report report on the magnitude of the industry that depends on "fair use."

is a free, all-day celebration of the doctrine of fair use: the legal right that allows innovators and creators to make particular uses of copyrighted materials. WFUD will take place at the Newseum in Washington D.C. on Tuesday January 12, 2010, and will be organized by Public Knowledge (PK), a Washington D.C.-based non-profit, consumer-advocacy group. PK works to ensure that communications and intellectual property policies encourage creativity, further free expression and discourse and provide universal access to knowledge. As part of its campaign to return balance to copyright law, PK hopes to use WFUD to educate the public about the importance of fair use in an information society.

Enhancing the fair use exception is all to the good, but it does not go far enough. Fair use is a vague, ad hoc, utilitarian legislative exception designed to blunt some of the edges of copyright law so as to help masque its manifest injustice. An analog would be a slavery law that permitted a judge to allow the slave a month of temporary freedom if he can demonstrate to the judge that his master has been mistreating him according to a balance test in which the judge weighs four "factors" to make this determination. Or an exception to tax law that says a judge can reduce your tax rate by 1% for one year, if you can persuade him of a "hardship" as proved by weighing four legislatively enshrined "factors." If the law is unjust and needs its edges blunted by ad hoc, unprincipled exceptions--the law itself is the problem and should be abolished.

This event is produced by the group Public Knowledge, which appears to be generally IP-skeptical ("Our first priority is promote innovation and the rights of consumers, while working to stop any bad legislation from passing that would slow technology innovation, shrink the public domain, or prevent fair use"; and they seem to be appropriately skeptical of the horrible DMCA), although their approach is somewhat ad hoc and unprincipled, and intermixed with the standard pro-democracy (and pro-Democrat), pro-"consumer," pro-network neutrality (see my A Libertarian Take on Net Neutrality) sentiments, and so on. Still, another ally in the fight against pattern privilege and intellectual monopoly.

One of the problems is that science has become politicized. Industries hire hacks (including scientists) to attack any science that does not meet their needs. Think of the Chamber of Commerce's recent call for economists to write a paper that will attack health care.

Under constant attack, scientists may feel the need to "play defense." Just like a football team that keeps its practices secret to prevent opponents from learning their plans, scientists may well become insular.

In this way, industry destroys good science, which should depend on sharing of information.

No - not King's civil rights legacy, but rather the tragicomic copyright legacy which prevents others from hearing his words and has now reduced King's historical significance in today's news to a question of who controls the money generated by having his image on a T-shirt.

If such restrictions can be placed on King's words and image, then why couldn't they be placed on any other public figure including Presidents and other elected officials?

One thing that has always puzzled me is whether you can sign a contract agreeing to give up your fair use rights. My colleague David McGowan point to some legal opinions on the subject. The crude summary seems to be that contract law is state law, so hard to give a uniform rule, but that

I think it is fair to say that so far the federal cases interpreting state law have gone against finding copyright pre-emption of state contract law and have upheld contractual prohibitions on conduct that would qualify as fair use if done outside a contract:
link here, link here.

He also refers to the ProCD opinion.

All of which raises the question: why isn't it more widespread? Why don't book and music publishers stick in a little fine print saying in effect "by purchasing this product I agree to give up all my fair use rights"?